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McMillian v. Cooks

United States District Court, S.D. Alabama, Southern Division

November 16, 2018

ALEX DEMETRIUS MCMILLIAN, Petitioner,
v.
MARY COOKS, Respondent.

          REPORT AND RECOMMENDATIONS

          KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE.

         Petitioner Alex Demetrius McMillian, an Alabama inmate proceeding pro se, has filed a Petition for a Writ of Mandamus under 28 U.S.C. § 2254 (Doc. 1).[1] Under S.D. Ala. GenLR 72(b), McMillian's petition and related motions have been referred to the undersigned Magistrate Judge for entry of a recommendation as to the appropriate disposition, in accordance with 28 U.S.C. § 636(b)(1)(B)-(C), Rule 10 of the Rules Governing Section 2254 Cases in the United States District Courts, and S.D. Ala. GenLR 72(a)(2)(R). After conducting preliminary review in accordance with Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the undersigned finds that McMillian's petition for Writ of Mandamus (Doc. 1) is due to be DISMISSED for lack of jurisdiction as an unauthorized second or successive petition.

         I. Second or Successive Habeas Petition

         McMillian's petition challenges a criminal judgment entered against him by the Circuit Court of Mobile County, Alabama, in March 11, 2013, on his conviction for attempted murder. However, the docket of this Court reflects that McMillian already filed a habeas petition in 2017 challenging that conviction. (See Alex McMillian v. Kenneth Peters, S.D. Ala. Case No. 1:17-cv-00069-WS-N). The record in McMillian's 2017 habeas case reflects that his petition there was dismissed with prejudice as time-barred under the one-year limitations period for bringing such petitions imposed by the Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d), by judgment entered September 11, 2017. (See S.D. Ala. Case No. 1:17-cv-00069-WS-N, Docs. 14, 16, 17). The record also states that McMillian was not entitled either to Certificate of Appealability or to proceed in forma pauperis on appeal. The record does reflect that an appeal was taken in McMillian's 2017 habeas case. Thus, the petition in this action (Doc. 1) is a second or successive petition challenging his 2013 criminal judgment.[2]

         “Before presenting a second or successive petition, the petitioner must obtain an order from the appropriate court of appeals authorizing the district court to consider the petition as required by 28 U.S.C. § 2244(b)(3) and (4).” Rule 9 of the Rules Governing Section 2254 Cases in the United States District Courts. Here, nothing in the record indicates that McMillian has received such an order. “Without authorization, the district court lacks jurisdiction to consider a second or successive petition.” Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003) (per curiam) (citing Hill v. Hopper, 112 F.3d 1088, 1089 (11th Cir. 1997) (per curiam)).

         Accordingly, the undersigned finds that McMillian's present petition (Doc. 1) is due to be DISMISSED for lack of jurisdiction as an unauthorized second or successive petition.

         II. Certificate of Appealability

         Generally, “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant” in a § 2254 case. Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts. However, a COA is unnecessary when, as here, the district court is dismissing a successive petition for lack of jurisdiction. See Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004) (per curiam).

         III. Appeal In Forma Pauperis

         “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3).

A party demonstrates good faith by seeking appellate review of any issue that is not frivolous when examined under an objective standard. See Coppedge v. United States, 369 U.S. 438, 445, 82 S.Ct. 917, 921, 8 L.Ed.2d 21 (1962). An issue is frivolous when it appears that “the legal theories are indisputably meritless.” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (citations omitted). In other words, an IFP action is frivolous, and thus not brought in good faith, if it is “without arguable merit either in law or fact.” Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001). More specifically, “arguable means capable of being convincingly argued.” Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991) (internal quotations and citations omitted). Nevertheless, where a “claim is arguable, but ultimately will be unsuccessful, ” it should be allowed to proceed. Cofield v. Ala. Pub. Serv. Comm'n, 936 F.2d 512, 515 (11th Cir. 1991).

Ghee v. Retailers Nat. Bank, 271 Fed.Appx. 858, 859-60 (11th Cir. 2008) (per curiam) (unpublished).

         It is indisputable that this Court lacks jurisdiction to consider the merits of McMillian's present petition because it is an unauthorized second or successive petition. Accordingly, the undersigned RECOMMENDS the Court certify that any appeal by McMillian of the dismissal of the present habeas petition would be without merit and therefore not taken in good faith.

         IV. Conclusion ...


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